Monday, May 15, 2006

Shutting Down the Speech

I’ve been on a break for a few weeks. New bloggers will find out; blogging can get old and then it’s a grind and since there’s no real payout, outside of a few emails, it requires inspiration -- and when it’s missing, it’s missing.

Enough on this lame explanation for a dropped ball.

I’ve also been busy watching all the other blogs: the comebacks, the orchestrated group think, the solid and always dead on deadpan, the mean & nasty, the gals, the bored insiders…etc. Notice I have no specific links to specific blogs; it’s more fun for y’all to have your own opinions about Iowa’s political blog world.

That said, I don’t think I’d keep this up if the current crowd of bloggers covered all the issues, but they don’t.

In a May 3rd Radio Iowa report Charlie Smithson, law professor and Director of the Iowa Ethics and Campaign Disclosure Board, commented on a recent IECD Board ruling on political blogs:

…He[Smithson] explains they were asked to review a "blog," one person's anonymous opinions posted to a site critical of some local issues in Burlington.

Smithson says all published political materials have to include the name of the person who paid for them, and in some cases the address too, if it was done by a registered political committee. Some people who blog, or post their opinions for the world to see, put lots of personal information on them, but some prefer to remain anonymous, especially if their material is controversial. This one was anonymous.

The blog, titled "Burlington Derailed," talks about issues affecting that eastern Iowa city and the surrounding area. The issue in this case was that an item posted on the blog advocated for and against candidates for a city council race. Smithson explains, "The owner of the blog, who calls himself 'Spike,' said 'vote yes on these candidates and vote no on these candidates' and a complaint was filed."

But the board ruled that the owner of the site won't be forced to come out and reveal his real identify after all. When the board looked at the decisions in other states and at court cases, Smithson says they'd decided blogs pretty much cannot be regulated unless there's paid political advertising on them or if the blog is in some way controlled by a candidate or a campaign committee. He says the Internet in general has been pretty much free from attempts to regulate it, and the Federal Election Commission has given up a few moves to try and do that.

Smithson says the author of this blog was pretty confident in his position. He'd told the regulators during the investigation that he wasn't a candidate for any office, and his blog wasn't controlled by any campaign. Smithson says the board is going to adopt some administrative rules that clarify that the campaign laws will apply if a blog contains paid political advertising or is controlled by a candidate or any kind of campaign committee.

"If you're truly just an individual out there posting your opinions on a blog, for better or worse, the campaign laws are not going to apply." Smithson says the ethics board applies campaign laws to direct mail and other political advocacy, and with more people all the time using the Internet he wonders if it'll continue to "get a free pass."

Spike also posted the Iowa Ethics and Campaign Board’s letter to his Burlington Derailed website. The letter reads in part:

… As both of you probably know, the court system and government regulators have struggled with the level of regulation that may be applied to the Internet. This is particularly true in the area of the free speech rights of bloggers. As part of the Board's consideration, it researched how other states and the Federal Election Commission (FEC) handle the issue of blogs and the campaign laws. How this issue is handled at the federal level is particularly instructive, as state campaign laws are modeled after federal campaign regulations. However, ultimately the Board has to interpret and apply Iowa campaign laws.

During this time, the FEC issued both an advisory opinion and then adopted federal regulations concerning the application of campaign laws to blogs. After reviewing the state campaign laws, how other states handle this issue, and the FEC opinion/regulations, the Board made the following determinations concerning the King complaint that Burlington Derailed blog was not in compliance with the state campaign laws:

1. That no campaign law/rule clearly applies to blogs. State law does require a "paid for by" on "Web sites" and there are other campaign laws that could apply Internet communications. However, the Board is going to grant the press exemption to Burlington Derailed at this time. …

… To be honest with both of you, as a campaign regulator I would prefer that anytime a blog expressly advocated for or against candidates or ballot issues the campaign laws would apply. It seems to me that if we can regulate an individual sending out a letter or placing a newspaper advertisement, that the same regulations could apply to the Internet. However, that is not the view of the courts and the general sway of government regulation. My concern is that blogging will not remain the dominion of individuals expressing their opinions. Rather, that campaigns will attempt to skirt the limited regulations that will be in place and we will simply have more underground and unregulated campaign activities (or at least more complaints/investigations on whether or not a particular blog is being controlled by a candidate). The issue of blogging is going to be a much bigger than one posting in a city election. But the Board made its determination and did so in reliance on established laws/regulations/decisions. …

For more details on the Burlington story go here, here and here.

I get the idea that if Charlie Smithson and the Iowa Ethics and Campaign Discloser Board could shut down Iowa political blogs, they would do it post-haste. But the FEC, at least for now, is taking a laissez faire approach to political blogs (Federal Election Commission Internet Communication Final Rules).

The feds have effectively shut down Smithson’s attempt to “regulate” free speech in the form of political blogs; however, it’s not a lethal stuff. Smithson is out fishing for information and opinions on political blogging and campaign ethics as noted in this post to the Council of Governmental Ethics Laws.

I am sure it’s just a matter of time before the Fairness Doctrine crowd finds a way to apply campaign finance laws to kill off the modern day John Dickensons. Additionally, South Park Conservative author Brian Anderson is using the mainstream media to warn anyone who’ll listen about this serious effort by entrenched left leaning elites to shut down political free speech.

… Are the hundreds of political blogs that have sprouted over the last few years - 21st-century versions of the Revolutionary era's political pamphlets - "press," and thus exempt from FEC regulations? Liberal campaign-finance reform groups like Democracy 21 say no.

"We do not believe anyone described as a 'blogger' is, by definition, entitled to the benefit of the press exemption," they collectively sniffed in a brief to the FEC. "While some bloggers may provide a function very similar to more classical media activities, and thus could reasonably be said to fall within the exemption, others surely do not."

The key test, the groups claimed, should be whether the blogger is performing a "legitimate press function."

But who decides what is legitimate? And what in the Constitution gives him the authority to do so? … (link)

To date, the legal and regulatory rulings are consistently on the side of blogging as a form of free speech. But that’s not something to be complacent about, with the Charlie Smithsons of the world looking to regulate the hell out of anything that might create an uneven playing field – whatever that means – it won’t be too long before states and the feds once again challenge the rights of individuals to express their native opinions.

Truly, what would we do without our daily blog fix?

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